Canadians Abroad

76 Pages·2016·0.85 MB·English

Canadian Centre for Policy Alternatives | Rideau Institute on International Affairs
March 2016
Canadians Abroad
A Policy and Legislative Agenda
Gar Pardy
About the Author
Gar Pardy retired from the Foreign Service in 2003
and since has written extensively on foreign poli-
cy issues and especially on those relating to con-
sular services. Before retirement he was Director
and Director General of Consular Services. Recent-
ly, he published Afterwords: From a Foreign Service
Odyssey, which contains numerous commentaries
on the issues discussed in this paper. The book is
available from Amazon or Chapters.
Acknowledgements
Isbn 978-1-77125-272-0
Mark Warren and Michael Welsh offered helpful
This report is available free of charge at www.
comments in the preparation of this paper. Mr War-
policyalternatives.ca. Printed copies may be or-
ren is a researcher on human rights and Mr Welsh
dered through the CCPA National Office for $10.
is retired from the Canadian Foreign Service where
PleAse mAke A donAtIon... he was, before retirement, the Director General for
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5 Executive Summary and Recommendations
9 Introduction
12 Background
22 Discussion of Specific Issues
Equality of Service
Clemency and Protecting Canadians from the Death Penalty
Dual Citizenship
Transfer of Offenders
Consular Service Fee
Voting Abroad
Mandela Rules for the Treatment of Prisoners
Canadian Legal Representation
Commissions of Inquiry Involving Consular Issues
Consular Cases Involving National Security
Privacy and the Media
Revocation of Canadian Citizenship
Oversight of Consular Policy and Cases
International Conference on Consular Relations
45 Conclusions and Recommendations
48 Annex A
52 Annex B
53 Annex C
55 Annex D
58 Annex E
66 Annex F
69 Annex G
72 Annex H
74 Notes

Executive Summary
and Recommendations
• Over the almost ten years of government by the Conservative Party of
Canada numerous policy decisions, including amendments to various
laws, were taken that initiated substantial change to Canada’s histor-
ical approach in assisting Canadians in foreign countries — known
collectively as consular services. Many of these changes played out in
Parliament and in the press and often were challenged in the courts.
More often than not the challenges were successful.
• The historical approach of the universality of consular services for
all Canadians was undermined and there was no assurance that all
Canadians were treated with equity, fairness and consistency.
• Omar Khadr, his brothers and other affected Canadians, strongly
supported by lawyers, were central to many of these cases; more
than fifty were filed with the Federal Court, the Federal Court of Ap-
peal, the Supreme Court of Canada and various provincial courts.
The decisions in these cases continue to be cited by others in simi-
lar appeals to the courts.
• These changes to long-standing laws and practices gave rise to char-
ges of discrimination in the delivery of consular services. Some Can-
adians were helped; others were not.
Canadians Abroad: A Policy and Legislative Agenda 5
• Many cases involved issues associated with actions by the RCMP and
CSIS; two Commissions of Inquiry were established and in turn they
examined some of the associated consular issues. Their reports and
recommendations have received little attention in the years since,
yet the reasons for their establishment are stronger today than ever.
• Little to no attention was paid to these issues either during the re-
cent election or in the mandate letters provided to the ministers ap-
pointed to manage Canada’s international affairs. This paper offers
a review of the issues and provides specific recommendations for
improvements.
• The issues involved, in addition to that of discrimination in the pro-
vision of consular services using Crown Prerogative, include clem-
ency and the death penalty, dual citizenship, transfer of offenders,
Consular Service Fee, voting abroad in Canadian elections, Mandela
rules on the treatment of prisoners, Canadian legal representation,
commissions of inquiry involving consular issues, consular cases in-
volving national security, privacy and the media, the revocation of
Canadian citizenship, oversight of consular policy and cases, and
an international conference on consular relations.
In summary, the recommendations for action by the Government
of Canada are as follows:
Crown Prerogative: Introduce a parliamentary resolution stating con-
sular services to Canadians will be provided without discrimination and
the government will disavow the use of the Crown Prerogative in such mat-
ters. In the longer term, establish in law the obligation to provide consul-
ar service to all Canadians and in doing so eliminate the use of the Crown
Prerogative in this area.
Clemency and the Death Penalty: Change existing policy so that clemency
would be sought for all Canadians sentenced to death in foreign countries.
Dual Citizenship: Seek agreements with countries where recognition of
Canadian citizenship is a problem in providing consular services and estab-
lish the obligation of Canada to extend such services to its dual citizens. In
the longer term seek international agreement on a set of norms on the issue.
Transfer of Offenders: Through amendments to the International Trans-
fer of Offenders Act, curtail the discretion available to Minister of Public Safe-
ty in considering applications for transfer by Canadian citizens.
6 Canadian Centre for Policy Alternatives
Consular Service Fee: Establish a review of the use of the Consular Ser-
vice Fee and the appropriateness of its current level. The review should be
presented to Parliament.
Voting Abroad. Remove the present five-year limitation on the right of
a Canadian citizen resident abroad to vote in Canadian elections.
Mandela Rules on the Treatment of Prisoners: Clearly state that Can-
ada accepts the Mandela Rules on the Treatment of Prisoners and ensure
they are reflected in Canadian prison policy.
Canadian Legal Representation: Establish a review of the rules gov-
erning Canadian legal representation of Canadians in difficulty abroad and
provide new norms to ensure there is appropriate cooperation by officials
in Global Affairs Canada on the matter.
Commissions of Inquiry Involving Consular Issues: Review the rec-
ommendations of the O’Connor and Iacobucci Commissions of Inquiry as
they relate to consular policy and actions and ensure that appropriate ac-
tion is taken if it is found that current policy and practices are inconsistent
with them.
Consular Cases Involving National Security: Establish the primacy of
the rights of the Canadian citizen when information on national security is
passed to foreign governments. Consular cases with national security con-
cerns should be included in the development of new oversight procedures
and organizations for national security.
Privacy and the Media: Establish with the Privacy Commissioner guide-
lines for the release of privacy information concerning consular cases when
issues of public safety and interest are involved. Equally, the Privacy Com-
missioner should provide guidelines for the use of information covered by
the Privacy Act for policy analysis.
Revocation of Canadian Citizenship: Remove from law the revocation
of citizenship of citizens with a second citizenship when convicted of cer-
tain crimes. Dual citizens should not be discriminated against on the basis
of a second citizenship. [Update: Amendments introduced in late February
to this effect.]
Oversight of Consular Policy and Cases: Initially ensure the House of
Commons Committee on Foreign Affairs or a sub-committee assume formal
responsibility in matters of consular policy and cases. In the longer term
explore the establishment of an independent authority reporting to Parlia-
ment to deal with consular policy and cases and to receive from the public
complaints on consular services.
Canadians Abroad: A Policy and Legislative Agenda 7
International Conference on Consular Relations: Canada should
play an active role in seeking international review of consular relations, in-
cluding the Vienna Convention on Consular Relations. To that end Canada
should host an international conference on the matter in 2017, the 50th an-
niversary of the coming into effect of the Convention.
8 Canadian Centre for Policy Alternatives
Introduction
Consular proteCtion, or services to Canadians in difficulty in foreign
countries, has never loomed large in the activities of the department of For-
eign Affairs or in its current iteration, Global Affairs Canada. There have been
efforts to provide the resources and skilled people to deliver such services
and today, despite public complaints to the contrary, the ability of the de-
partment to provide consular services is probably better than at any time in
its history. However, over the past decade, there have been a number of sig-
nificant changes in the policies governing such services. These have serious-
ly undermined the universality of the services and do not ensure Canadians
are treated by their own government with equity, fairness and consistency.
The government elected on October 19 has not made any specific refer-
ence to these issues either in its election platform or in the letters of instruc-
tions to newly appointed ministers within the Global Affairs Canada port-
folio. Equally, during the election campaign itself, there were few, if any,
references to the needs of Canadians in foreign countries, nor an interest in
examining the matter in the post election period.
Daily stories in the media of these difficulties remind us of the import-
ance of the matter to a large number of citizens. Recently six Canadians died
in a murderous attack on a hotel in Ouagadougou, while a few days earlier
another died on the streets of Jakarta. Hundreds languish in foreign prisons
on specious charges while others need urgent medical attention or evacu-
ation from the world’s trouble spots.
Canadians Abroad: A Policy and Legislative Agenda 9
In the past few years an insidious doctrine has been introduced governing
such services. This doctrine suggests that first and foremost Canadians are
primarily responsible for solving their own problems. This is akin to emer-
gency room medical personnel screening patients on the basis of their life
styles or the accidents they may encounter on life’s perilous journey. Equal-
ly, the previous government was quick to suggest that the problems of Can-
adians overseas were due to the actions of foreign governments, seeking to
limit the responsibility of the Canadian government to provide appropriate
assistance. While this is a significant element in some cases, the Govern-
ment of Canada must accept full legal responsibility in ensuring that every-
thing possible is done to assist such Canadians.
A few weeks ago Amnesty International in association with the Fahmy
Foundation released a “Protection Charter.” The Charter provides “princi-
ples to guide Canadian law and policy reform” in order to strengthen and
make more effective “Canadian government action to defend the rights of
Canadian citizens and individuals with close Canadian connections.” The
Fahmy Foundation was created by Mohamed Fahmy, a Canadian journalist,
who was wrongfully imprisoned in Egypt for his work during the recent but
unfortunately short Arab spring of political change. Mr Fahmy was released
and permitted to return to Canada, and he has made it his work to bring into
“sharp focus the urgent need to reform and strengthen the laws, policies
and practices that guide Canadian government action in such cases.” This
report, which was undertaken simultaneously with the development of the
Amnesty International Protection Charter, has some of the same objectives.
This report brings together various issues associated with assistance to
Canadians overseas and suggests various corrective actions that could be
taken by the new government. The corrective actions include both policy
and legislative initiatives and in their collectivity would create greater equity,
fairness and consistency in the treatment of Canadians who go beyond our
borders for a wide range of reasons.
In all of this it is important to emphasize that the consular function does
not carry with it the need to pass judgement on the activities of consular cli-
ents. Rather it operates independently of such judgements. Instead, it seeks
to establish and require standards of conduct by governments in how indi-
viduals are treated. In the international arena the rule of law in this area re-
mains a fragile flower and there is a reluctance by some governments to see
it flower further. Canadian policy and actions on behalf of Canadians out-
side of Canada should recognize this and ensure nothing is done to make
10 Canadian Centre for Policy Alternatives